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Parliament collapsing through MP exodus a ‘spectacular misreading of the Constitution’

11 August 2017 - 08:02
Bianca Capazorio

Parliament. Picture: GCIS

Constitutional law expert Pierre de Vos says any suggestion that Parliament can be collapsed by a mass resignation of MPs is a "spectacular misreading of the Constitution".

In the wake of the announcement on Wednesday by the DA that they would bring a motion to dissolve Parliament‚ EFF leader Julius Malema tweeted the party saying this was not necessary as section 46 of the Constitution states that a mass resignation of at least 50 MPs would have the same effect.

That section states that Parliament is composed of no less than 350 MPs.

De Vos says in his blog Constitutionally Speaking this is a "spectacular misreading" of the Constitution‚ as this section purely determines the size of Parliament.

"When the Constitution was negotiated there was some disagreement about the ideal size of the NA (National Assembly). Some parties wanted the number of MPs to be reduced from 400 to 350 or even 300. As a classic compromise the Constitutional Assembly devised section 46(1) which allows the legislature to decide on the size of the NA but prescribes to the legislature that it could not reduce the size to below 350 MPs and could not increase the size over 400‚" he said.

"When 60 MPs resign their seats‚ the size of the NA does not dip below 350. It remains 400. All that happens is that there will be 60 vacancies in the 400 member NA. The NA will continue to do its work — although 60 opposition MPs will be missing from the NA when it does so. There will be no election. End of story‚" De Vos said.

The DA submitted its request to debate a motion to dissolve Parliament on Thursday afternoon.

Chief whip of the party John Steenhuisen said they hoped the motion would be placed on the order paper for debate "soon".He said the party had taken the step to "ensure that South Africa does not have to withstand the devastating effects of Jacob Zuma’s presidency for another two years."

The DA is relying on section 50 of the Constitution‚ which provides for the dissolution of Parliament and for the holding of an early election within 90 days of such a resolution of the House: If a majority (201) of MPs vote to pass a motion to dissolve parliament and;

If three years have passed since the last election of the National Assembly.

The three years of this fifth parliament already lapsed in May this year after it was elected in the same month of 2014.

But it's unlikely that the DA would have the backing of all of the opposition parties‚ let alone the 201 votes it would need to pass the motion.

UDM leader Bantu Holomisa‚ who mounted a Constitutional Court battle to secure Tuesday’s secret ballot‚ has already indicated that his party would not support the DA's latest motion.

The IFP's Narend Singh said the party had not had formal discussions on the matter and had not been consulted by the DA yet.

"If we are approached‚ we will discuss it in our national executive committee meeting‚" he said.

Cope leader Mosioua Lekota said they had also not been approached and had asked the DA for a meeting to discuss the matter.

He said though that "there was nothing to suggest that it will be successful".

De Vos said in terms of section 53 of the Constitution which deals with the quorum of Parliament‚ the institution could be rendered "toothless" if 201 MPs resigned as it would not be able to pass any legislation.

"But this is not going to happen. Even if all the opposition MPs resign‚ the governing ANC would be able to pass legislation with its 249 MPs. The ANC MPs are never going to resign en masse to collapse the NA because the governing party members would at all cost wish to avoid an election before its own elective conference in December‚" he said.